EU officials are claiming to have ‘fixed’ net neutrality after a late night session to thrash out a deal on telecoms. From what can be ascertained, the deal gets rid of roaming charges on mobile phones, in return for the network operators – fixed and mobile – being allowed to do preferential deals over content inside bandwidth caps – so-called zero-rating. The EU has been wanting to abolish roaming charges for some time, against resistance from the network operators, who would lose revenue. It seems that zero-rating is the political quid pro quo, and if it is so, then we are witnessing a clever piece of smoke and mirrors.

The deal arises out of a ‘trilogue’ meeting yesterday between representatives from all three European Union institutions – Commission, Parliament and Council – to discuss the Connected Continent regulation, which addresses telecoms network providers. There were only two policy issues on the table – roaming for mobile phones, and net neutrality. It’s understood that they sat up until 2 or 3 o’clock in the morning, trying to hammer it out. It has been done within the legislative process, but by no means concludes it, and it still has to be voted.

The official text of the agreement has not been publicised, so this analysis is based on the press releases issued this morning by the European Commission. The release begins with a series of positive statements, that the open Internet will be guaranteed. Operators will not be allowed to block or throttle content nor will they be allowed to prioritise the transmission of certain content in return for preferential payments. So far, so good.

But the devil is in the detail. The European Commission's explanatory Q and A states that zero-rated content will be permitted, or least, it will not be prohibited. The point here is that is something is not prohibited, then it can be done, without any legal ramifications. So if zero-rating of content is not expressly prohibited, then the operators will be able to do it, and they will not be sanctioned.

There has been much analysis as to why zero rating is effectively another form of preferential deal. It allows people to access the operator's preferred content without using up their bandwidth allowance. It will effectively restrict the content available to the user by incentivising them to use the zero-rated content and not explore elsewhere. The incentive is that it will be so much more expensive to use the non-zero-rated content, and so people simply will not do so.

Last night's EU political agreement means that in principle the EU can claim to have protected an open Internet, but in practice, has the EU has just signalled the opposite? Could blocking, filtering and priorisation simply be translated as bandwidth-cap management?

The very large content platforms such as Facebook will do the deals to get inside those caps with all operators, but a small innovator will not have the resources to do so, and hence will be disadvantaged. If so, contrary to the European Commission’s press release, innovation will suffer as a result of this deal.

The explanatory Q and A also mentions ‘specialised services’ but there appears to be no definition of what these are ( see also comment from EDRi). A definition is critical in order to have legal certainty.

Based on the information available, the agreement is that specialised services may not harm the access to the open Internet. The main example is Internet TV. So does this mean that broadband providers are being incentivised to run television services?

As regards traffic management, the deal allows ‘reasonable’ traffic management, which has been previously debated and is a term that is subject to different interpretations. So again, there will be no legal certainty.

There’s also the obvious get-out for the British ISPs who are filtering content, although it is possible that this deal would force them to limit their filters as it would not permit the over-broad implementation that they currently have in place.

The EU net neutrality deal does give regulators more powers to oversee operator behaviour. This is theoretically a positive move, but unless the criteria for the regulators are clear and precise, those powers may be toothless.

Hence, this is not net neutrality, not as we know it. The deal was brokered by the Latvian Presidency who wanted to get it done before the summer when it hands over to Luxembourg. Each Presidency is rated on what it has achieved and so the Latvians will count this towards their scorecard.

The European Commission suggests that this will now go forward into law by 30 April next year, but it is not clear how they have arrived at that date. This is a political agreement between the three institutions, but it is not the final version.

The text has to be put to the European Parliament who will have to adopt it. That is a two stage process – first in the ITRE committee and then in the plenary. Amendments may be proposed in either and there are already suggestions – as here from Digitale Gesellschaft - that there will be amendments and they will be hotly fought over.

The rapporteur, Mrs Del Castillo, would do well to recall the second reading of the 2009 Telecoms Package on 6 May 2009. That was a last minute deal in the European Parliament that overturned another smoke-and-mirrors bargain with the Council of Ministers.

We wish the EU officials a happy, non-zero-rated, summer holiday and don’t forget the filtering cream.

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PS. Update - I've now heard that the matter of zero-rating will be left to the Member States. If any of my assumptions above are not correct, I am happy to receive further information from the Commission.

If you like this article then you might like my book The Copyright Enforcement Enigma: Internet politics and the Telecoms Package. It discusses the 2009 Telecoms Package and the processing of it in the European Parliament, which provides political context for the Telecoms regulation (Connected Continent). The book also explains all about how the political processing works.

This is an original article from Iptegrity.com and reflects research that I have carried out. If you refer to it or to its content, please cite my name as the author, and provide a link back to iptegrity.com. Media and Academics – please cite as Monica Horten, 2015, EU officials after-midnight deal to fix net neutrality - but have they really done it? in Iptegrity.com, 29 June 2015. Commercial users - please contact me.

Iptegrity.com is the website of Dr Monica Horten. She is a trainer & consultant on Internet governance policy, published author& Visiting Fellow at the London School of Economics & Political Science. She served as an independent expert on the Council of Europe Committee on Internet freedom. She has worked on CoE, EU and UNDP funded projects in eastern Europe and beyond. She was shortlisted for The Guardian Open Internet Poll 2012. Iptegrity offers expert insights into Internet policy (and now Brexit). Iptegrity has a core readership in the Brussels policy community, and has been cited in the media. Please acknowledge Iptegrity when you cite or link. For more, see IP politics with integrity

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